2015 Appellate Cases

Since 2011, the Asper Centre has been compiling a special collection of constitutional law cases from all Canadian Courts of Appeal. These cases demonstrate how Charter questions are being litigated today.  Many of these cases are in the process of being appealed to the Supreme Court of Canada.

The cross-Canada appellate cases in this collection have been arranged by key Charter sections for ease of use.  Below are the 2015 cases.

To access the cases organized by Charter section for other years, click on the archive links on the right-hand side.  

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Section 1

Section 2(a)- Freedom of Religion

Section 2(b)- Freedom of Expression

Section 2(d)- Freedom of Association

Section 3 – Voting Rights

Section 7- Life, liberty and security of the person

Section 8- Search and Seizure

Section 10(b) –Right to Counsel

Section 11(b) –Right to be tried within a reasonable time

Section 11(d)- Presumed Innocence

Section 11(i) –Lesser Punishment

Section 13- Self-crimination

Section 15 – Equality

Sections 16 & 18- Language Requirements

Section 23- Minority Language Educational Rights

Section 24- Remedies

Separation of Powers

Federal Court of Appeal


Minister of Citizenship and Immigration v. Zunera Ishaq 2015 FCA 194 The Respondent in the appeal, Ishaq was a permanent resident with religious beliefs requiring her to wear a niqab, or face covering, at all times in the public. She applied for full Canadian citizenship and had passed all her tests; however, the penultimate step towards attaining citizenship included taking an oath of citizenship in a public venue. Under the most updated regulations overseeing the citizenship application process, citizenship judges could only administer the oath in swearing-in ceremonies where all participants could not have their face concealed. Ishaq refused to remove her niqab since it would violate her Islamic beliefs and subsequently sued the Ministry of Citizenship and Immigration for breaching her s.2 (a) and s.15 (1) Charter rights. At trial, Justice Boswell ruled that the Ministry’s regulations were invalid since they were contrary to the overarching Citizenship Regulations which govern citizenship judge conduct. The court did not address the Charter arguments. The Ministry appealed the decision and controversially reaffirmed the then-Conservative government’s public position that “citizenship is a privilege and not a right.” The Federal Court of Appeals swiftly dismissed the appeal since it agreed with the Federal Court’s result but under different interpretations of the Citizenship Regulations. The appellate court also did not deal with the Charter arguments presented. The Conservative government appealed to the Supreme Court but the appeal was withdrawn shortly after the Liberals won the 2015 Election and formed the new ruling government.

Alberta Court of Appeal


R. v. Caswell, 2015 ABCA 97 (CanLII): This was an application for leave to appeal to the ABCA from a conviction for failing to comply with a demand for a roadside breath sample. The appellant argues that the Court should reconsider its decision in R v Mitchell, 1994 ABCA 369 (CanLII) that section 10(b) Charter rights are suspended when a detained motorist is asked to participate in roadside sobriety tests. Leave is granted based on the changes in what technology made possible between 1994 and 2015 in terms of providing immediate access to counsel. The dissent argues that the original judgment was based on a decision of parliament to require the provision of breath samples without legal advice rather than any kind of judgment about ease of contacting counsel, etc. An application for leave to appeal to the Supreme Court of Canada was dismissed on April 6, 2017.

R. v. Magomadova, 2015 ABCA 26 (CanLII). In this case, the trial judge granted a “fair trial” stay of proceedings under s.7 and 11(d) of the Charter on the theory that Ms. Magomadova could not be fairly tried because her health had deteriorated to the point that she was incapable of meaningful full participation in her trial. The Court of Appeal indicates that this is not an issue which has been clearly decided at the appellate level, and declares that the correct test for determining that an accused is not fit to stand trial under s.7 and 11(d) is to ask whether an accused has established on a balance of probabilities, that her right to a fair trial will be prejudiced by being required to stand trial when

  1.    her mental or physical health prevents her from adequately defending herself as a result of not being able to (i) understand the nature or object of the proceedings and the possible consequences of the proceedings, or (ii)  adequately communicate with her counsel, or (iii)  testify when necessary, or
  2.    the trial process itself would seriously imperil her health.

The court also indicates that a Trial Judge must make a full examination of other possible avenues of accommodation before ordering a stay. They cite a number of cases in which courts have refused a stay on health grounds on the theory that the accused’s frailty could be accommodated by the trial process. The dissent argues that the Trial Judge applied the test that the majority indicated is the correct one, as she wrote that “ the accused is not physically capable of proceeding with a five-week trial and cannot give full answer and defence due to her medical and mental condition.” The dissent further argues that if the court concludes that an accused is not fit to stand trial, then a stay is the only remedy. The other alternatives that the majority cites are not for cases where the accused is unfit to stand trial. Rather, they are accommodations in cases where the accused is fit to stand trial. Leave to appeal to the Supreme Court was filed and denied.

R. v. MacPherson, 2015 ABCA 139: In this case, the Court upheld a Trial Judge’s determination that a 16 month period of pre-trial incarceration violated the defendant’s s 11(b) right to a speedy trial, and prejudiced the defendant sufficiently to justify a stay of proceedings. The Court acknowledged that the 16 month delay was within the 14-18 months that the Supreme Court indicated would be acceptable in R v Morin, 1992 CanLII 89 (SCC), but declared that the delay was nevertheless too long given the effort that Mr. MacPherson put into achieving a speedy trial, and the fact that MacPherson was incarcerated for the entire period of 16 months.

British Columbia Court of Appeal


Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 352: A developer wanted to build a year-round ski resort on a piece of Crown land. The Ktunaxa Nation disagreed with the project by arguing that any development of overnight lodgings on property would irreparably harm their spiritual relationship with the land. The BC Ministry of Forests, Lands, and Natural Resource Operations (“Ministry”) approved a considerably revised development plan which took into account the Ktunaxa Nation’s concerns and certain recommendations. Despite this, the Ktunaxa nation sought judicial review of the project with respect to its people’s rights under s.2(a) of the Charter. Trial judge held that s.2(a) does not restrict otherwise lawful right to use land. Ktunaxa Nation appealed and the appellate court agreed that the development project did not violate the Ktunaxa Nation’s s.2(a) rights. Also, s.2(a) rights of a certain group cannot restrain or restrict behaviour of others who do not share that same belief. Leave to appeal was granted on March 17, 2016. The judgment has not yet been released.

West Kelowna (District) v. Newcomb, 2015 BCCA 5: This is a case affirming a trial court decision on the question of whether a municipal by-law and licence for boating that prohibited mooring a houseboat on Okanagan Lake were unconstitutional because they were in pith and substance about navigation and shipping, a federal head of power. The court concluded that while the pith and substance of the law and licence were related to land-use regulation and matters of local concern, they had to be read down to allow temporary mooring of vessels, because temporary moorage falls within the protected “core” of the shipping and navigation head of power.

R v. Goodkey, 2015 BCCA 64: This case is about violations of the accused’s Charter rights in the course of an arrest. The Court suggests that the s.10(b) right to counsel applies to counsel of choice even after the accused has spoken to a lawyer. On the circumstances of the case, the accused spoke to duty counsel, and then found out that his wife was trying to arrange a different lawyer for him, and the court concludes that attempting to interview him at that point was a violation of his right to counsel under s.10(b). The court’s other conclusions are fact-based and reflect no new development in the law.

The Law Society of British Columbia v. Zoraik, 2015 BCCA 137 (CanLII). This is a case about a lawyer who committed an indictable offence. The Law Society discipline committee referred the problem to the Law Society Benchers, to decide whether Mr. Zoraik should be suspended or disbarred. They elected to disbar him. Mr. Zoraik seeks judicial review of that decision, arguing that the procedure followed infringes his right under s.7 of the Charter to practice a profession. The Court concluded that the Law Society Benchers should have considered Mr. Zoraik’s Charter argument, but remitted the matter back to the Law Society without deciding on the constitutional issues.

British Columbia Teachers’ Federation v. British Columbia, 2015 BCCA 184 (CanLII). In this case, the Province of BC is appealing the Trial Judge’s finding that some sections of the Education Improvement Act violated members of the BCTF’s right to free association under s.2(d) of the Charter by interfering with terms of the collective agreement, and the bargaining process. The trial judge based this conclusion on two findings: first that the Province’s consultation with the BCTF was not relevant to the question of whether its members’ free association rights were violated, and in the alternative that the consultations were undertaken in bad faith. As a result of these findings, she concluded that the 2(d) rights of BCTF members were violated. The BCCA allows the appeal, concluding that a process of consultation with the BCTF is relevant, because the question is whether the Province provided an adequate process within which BCTF members could express their collective aspirations. That process need not be in the form of collective bargaining; the consultation with the BCTF during the drafting process for the legislation can itself be a form of associational activity sufficient to avoid infringement of the 2(d) rights of the BCTF members. In support of this conclusion, the Court cites Health Services(2007 SCC 27 (CanLII)) and Meredith v. Canada (Attorney General), (2015 SCC 2 (CanLII)), which indicate that “even where a matter is of central importance to the associational right, if the change has been made through a process of good faith consultation it is unlikely to have adversely affected the employees’ right to collective bargaining” (Health Services). The majority then concluded that the Trial Judge’s finding that the Province had failed to consult in good faith was a palpable and overriding error that justified its overturn on appeal. The dissent agreed with the majority that pre-legislative consultation is highly relevant to the question of whether the s.2(d) rights of the BCTF members were violated, but argued that the Trial Judge’s findings of fact were not palpable and overriding errors, and that her decision should be upheld on her alternative basis. The Supreme Court of Canada rendered its decision on November 10, 2015.

BC Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2015 BCCA 172 (CanLII). In this case, the BCFIPA is appealing the Trial Judge’s determination that a provision of the Election Act, R.S.B.C. 1996, c. 106 infringes s.2(a) of the Charter, but is justified under s.1. The Court of Appeal concludes that the provision, which requires third parties seeking to advertise in BC elections to register their name and address with the Chief Elections Officer, is constitutional in spite of the fact that other provinces have created similar frameworks that were less impairing of s.2(a) rights. This conclusion is based on the fact that the burden imposed by the legislation is small and the degree to which other frameworks are less impairing is minimal, and that it therefore falls within the “zone of discretion” that the legislature has in deciding how to pursue its objectives under s.1 of the Charter. The dissent argues that requiring registration even for very small expenditures on advertising during a political campaign is not minimally impairing because it theoretically captures even the creation of a single sign or bumper sticker since it lacks a floor for the registration requirement, and that the registration represents a more substantial burden to people who are illiterate, who fear for their personal security if they publicly register their address, or who would otherwise desire to make a minor contribution to political debate during an election but would struggle with the registration requirement. ​This decision has not yet been appealed to the Supreme Court.

R. v. Paterson, 2015 BCCA 205 (CanLII): This is a case about exclusion of evidence. It raises a question of law which had not been previously addressed at the appellate level: does the Crown have to prove beyond a reasonable doubt that statements made by the accused were voluntary before it can rely on them in a Voir Dire on a Charter issue? The Court concludes that the Crown does not need to prove statements tendered as evidence during a Voir Dire were voluntary beyond a reasonable doubt, because the purpose of the confessions rule is specifically targeted at statements that go to proving one of the elements of the offence the accused is charged with. The Supreme Court of Canada rendered its decision on March 17, 2017.

R. v. Pelucco, 2015 BCCA 370: In this case Pelucco was arrested for trafficking after police seized a cell phone from another trafficker and, posing as that trafficker, arranged to buy a kilogram of cocaine from Mr. Pelucco via text. The Court holds that Mr Pelucco had a reasonable expectation of privacy in text messages that he sent to the other trafficker. Text messages are private communications under section 183 of the Criminal Code and police officers must have authorization to intercept them. The Court distinguishes this case from R v Belcourt in which the accused was found not to have privacy rights in his text messages, indicating that the difference is that there was no unlawful search in Belcourt. This leads to the conclusion that when someone sends a message to someone else, they accept the risk that that person may disseminate it further, but can reasonably expect that police will not search it without authorization.

Manitoba Court of Appeal


Grant v. Winnipeg Regional Health Authority et al., 2015 MBCA 44 (CanLII): In this case, the MBCA determined that the law was unsettled on the question of whether “redress for a violation of the Charter ends on death, even when the violation allegedly contributed to the death.” The Court granted the appellant public interest standing to the appellant to bring a charter claim as the administrator of the deceased’s esate.

New Brunswick Court of Appeal


Charlebois v. Town of Riverview, 2015 NBCA 45: Mario Charlebois contested the constitutionality of s. 35 of The Official Languages Act, asserting that by requiring that a municipality whose official language minority reaches at least 20% of the total population before the municipality is required to adopt that language officially and publish its by-laws in both languages, the act violates sections 16(2) and 18(2) of the Charter of Rights and Freedoms. The court of appeal does not grant M. Charlebois leave to appeal the trial court’s decision to deny his request that s. 35 be struck down for unconstitutionality and that the laws of Riverview be declared invalid and of no force; however, the court does grant leave to appeal the dismissal of his motion that “the Town of Riverview Building By-law R300-10-1 and Zoning By-law 300-5 be declared invalid and/or that the Town of Riverview proceed with the reading and adoption of Building By‑law R300-10-1 and Zoning By-law 300-5 in both official languages within 30 days of the issuance of the order.” The final decision has not yet been released. An application for leave to appeal to the Supreme Court of Canada was dismissed on January 19, 2017.

Nova Scotia Court of Appeal


Dale v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2015 NSCA 71: In this case, the Court held that the case lacked a sufficient evidentiary basis to support a section 15 Charter claim for inclusion of gradual onset mental illness in the class of illnesses that are compensable under the Workers’ Compensation Act SNS 1994-95, c 10. It distilled the following principles from the Supreme Court jurisprudence on evidentiary sufficiency:

  1. a) Each case must be considered on its own facts (or lack thereof): Danson.
  2. b) The question to answer is whether the appeal record provides sufficient facts to permit the Court to properly adjudicate the issues raised: Taypotat; Martin.
  3. c) In general, any Charter challenge based upon allegations of the unconstitutional effects of impugned legislation must be accompanied by admissible evidence of the alleged effects.  In the absence of such evidence, the courts are left to proceed in a vacuum, which, in constitutional cases has always avoided: Danson; Martin.
  4. d) Adjudicative facts are those that concern the immediate parties: “who did what, where, when, how and with what motive or intent ….”  Such facts are specific, and must be proved by admissible evidence. Legislative facts are those that establish the purpose and background of legislation, including its social, economic and cultural context.  Such facts are of a more general nature, and are subject to less stringent admissibility requirements: Danson.

On the facts of this case, the Board which originally made a Charter ruling did so without even having determined what kind of illness the applicant was suffering from. As a result, there was not enough evidence to support a Charter remedy.

Muggah v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2015 NSCA 63 (CanLII): This case asks whether the denial of survivor benefits under the Workers’ Compensation Act to a dependent former common law spouse is discrimination on the basis of marital status under section 15 of the Charter. The court indicates that the analogous ground of marital status is applicable when there is a distinction drawn between married partners and unmarried but cohabiting partners, and that although the status of divorcee or former common law spouse is colloquially a marital status, it does not fit into the logic of marital status as an analogous ground for the purposes of section 15 of the Charter. The court cites Hodge v Canada 2004 SCC 65 (CanLII) for the proposition that separated common law spouses are most aptly compared to divorced married spouses, and that therefore there is no discrimination in this context between different kinds of marital status since neither divorced married spouses nor separated common law spouses receive the benefit of the law. The court also engages with the question of how to identify discrimination. It dismisses the conclusions of the tribunal, which were based on an attempt to create a mirror comparison between the situation of the plaintiff and someone who qualified as a spouse under the act. It concludes that the attempt to directly compare the financial compensation that the two comparators would receive is ineffective because there are numerous undefined variables. Instead, it considers the systems which protect dependent spouses and dependent former spouses, and concludes that although the systems protecting dependent former spouses are different (the laws surrounding divorce rather than the Workers’ Compensation Act), they are suitable protections, and the differences are responsive to the practical differences between situations.

Springhill Institution v. Richards, 2015 NSCA 40 (CanLII): This is an appeal on the question of whether a provincial court judge has the authority to hear an application for habeas corpus when the prisoner applying was no longer in the province. The Court concludes that the judge did have jurisdiction on the logic that it was the best way to ensure timely and effective access to the right, which is protected by the Charter. Especially in cases regarding detention, if timely access to the right is not provided, then the right cannot be effectively exercised.

Nova Scotia (Public Prosecution Service) v. FitzGerald Estate, 2015 NSCA 38 (CanLII): This is an application under the Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5 (FOIPOP) for the disclosure of documents relating to a prosecution that were withheld by the Crown. The application is an attempt to gather evidence for a ministerial review request under s. 696.1 of the Criminal Code. The court concludes that someone seeking ministerial review is not “charged with an offence” as is required to trigger s.11 of the Charter, and therefore is not entitled to the protection of the trial rights under section 11, such as the s.11(d) right to be presumed innocent. As a result, they determine that the applicant has no Charter interest in disclosure, and cannot rely on the reasoning in R v Stinchcombe emphasizing the rights of the accused to disclosure by the crown in his FOIPOP application.

Barton v. Nova Scotia (Attorney General), 2015 NSCA 34 (CanLII): This is a case in which new evidence resulted in an acquittal from a 45 year old conviction for statutory rape. Barton, the newly acquitted, sought Charter damages against the crown for having breached his Charter rights. The Court indicates that not every wrongful conviction will result in Charter damages, and that here the case for damages is not made out on the facts.

Ontario Court of Appeal


R. v. White, 2015 ONCA 508: This case is about the reasonable expectation of privacy in the public spaces of a multi-unit apartment building. Merith White was charged with possession of large volumes of drugs for the purpose of trafficking after police repeatedly entered his apartment building through an outer door which did not lock properly. They obtained the information needed to apply for a search warrant by observing people entering and leaving the apartment, and by looking at the contents of his storage unit in the public area. The crown argued that there is no reasonable expectation of privacy in the common areas of an apartment building, but the Court held that a contextual analysis of each case was required to determine whether there is a reasonable expectation of privacy in the common areas of an apartment. In the case at hand, a building with only 10 units in which personal storage was available in a common area was held to be subject to a reasonable expectation of privacy, and the evidence was excluded.

Canada v. Lewis, 2015 ONCA 379 (CanLII): This case asks whether offenders who committed offences before, but were convicted and sentenced after, the enactment of the Abolition of Early Parole Act are entitled to the accelerated parole review rules prior to the AEPA’s enactment. The Court concludes that the offenders are entitled to the benefit of the pre-AEPA scheme, because s.11(i) of the charter says that where an offence is committed before a change in the law, the offender is entitled to the lower of the two punishments. The court concludes in this case that R. v. Rodgers 2006 SCC 15 (CanLII) is the leading authority on what is punishment, and that elimination of early parole falls under its definition of “forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence and the sanction is one imposed in furtherance of the purpose and principles of sentencing.” The Court cites R. v. Liang 2014 BCCA 190 (CanLII) for the proposition that the notion of a “settled expectation of liberty” from AG v. Whaling 2014 SCC 20 (CanlII) referred to the actual sentence duration, rather than any subjective expectation of sentence duration held by the offender.

R. v. Munkonda, 2015 ONCA 309: In this case, the language rights of a francophone accused in Ontario were not respected during a bilingual preliminary inquiry (some English-speaking and some French-speaking accused). Two of the three prosecutors appointed to the trial did not speak French, the vast majority of the submissions were in English, and they were not able to reply to the accused or his lawyer in French. The accused brought a claim for breach of s.530(1) of the Criminal Code, and under sections 7 and 11(b) of the Charter. The Court of Appeal found that the accused’s s.530 rights under the Code were violated, but reiterated that language rights are not principles of fundamental justice under s.7 of the Charter. The Court indicated that it may be possible to bring a s.11(b) claim for unreasonable delay where the delay and the appeal process result from a violation of the accused’s language rights, but suggested that the appropriate place for this motion was at trial. The Court ordered the Crown to pay the costs of the accused in the preliminary inquiry and at the Court of Appeal level for its violation of s.530 of the Criminal Code, which is one of the few times a cost award has been granted against the Crown outside of a Charter context, or clear showing of bad faith by the prosecution.

R. v. R. S., 2015 ONCA 291: In this case, the crown is appealing a sentencing determination in a sexual assault case. The offender was sentenced to 7 years in custody, but given 2:1 credit for time already served. His offence was committed before the Truth in Sentencing Act S.C. 2009, c. 29, which sets upper bounds on credit for time served, came into force, and the sentencing judge determined that the retrospective application of the Act violated the respondent’s s.11(i) Charter right not to receive a greater punishment than that which was in place at the time of the offence. The appeal centers on whether pre-sentence custody is punishment, and whether it was varied by the Truth in Sentencing Act. The Court cites Whaling 2014 SCC 20 (CanLII) for the proposition that “the greater the likelihood of additional incarceration” the more likely it is that a retrospective change will constitute punishment. Based on this, and Liang v Canada (AG) 2014 BCCA 190 (CanLII), the Court concludes that all incarceration is punishment, and that the prospect of longer incarceration because of a reduced credit for time means that the punishment will be greater for the purposes of s.11(i). The Crown contended that the phrase “varied” meant that parliament had changed the consequences of the crime, and that this was a case where the judge’s sentencing had been varied instead. The Court concludes that the Trial Judge was correct to find that changing sentence mitigation factors in the Criminal Code qualified as a change of the sentence by Parliament, and not by the Courts. The Court also concludes that the legislation is not saved under s.1, because the Crown adduced no evidence that it was minimally impairing in its achievement of the legislative goals of 1) enhancing parity between sentences by ensuring uniform assessment of time spent in remand, and 2) creating certainty as to the scope of the amendments by clearly defining the category of offenders to whom the new rules apply.

R. v. Nguyen, 2015 ONCA 278: At issue in this case is whether the spousal incompetency rule is limited to married spouses, or whether it applies to common-law spouses as well. The appellants assert that restricting incompetency to married spouses violates their s.15(1) equality rights under the Charter. The court took an approach based on Quebec v A 2013 SCC 5 (CanLII), which stipulates that a distinction can be discriminatory even if no prejudice or stereotyping arises from it. They therefore conclude that the Trial Judge’s finding that discrimination did not result because of a lack of stereotypes or prejudice resulting from the distinction is incorrect. The court’s conclusion is that allowing common-law spouses to testify does discriminate against them within the meaning of s.15(1). However, they determine that the discrimination is justified under s.1 for two reasons. First, “testimonial competence affirms the dignity and autonomy of an individual,” so there is a positive impact on individual dignity and autonomy as well as a negative one. Secondly, they apply the finding in Quebec v A that maintaining a distinction between common-law and married spouses allows each couple to have freedom of choice about the degree to which they take on the responsibilities and benefits of a marital relationship, while still providing core benefits of a spousal relationship. Also relevant to their decision is that a couple can marry exclusively for the purpose of obtaining the benefit of the spousal incompetency rule even after an indictment is sworn, which reduces the disadvantage suffered by common-law spouses in the context of the spousal incompetency rule. An application for leave to appeal to the Supreme Court of Canada was dismissed on January 14, 2016.

R. v. Schertzer, 2015 ONCA 259 (CanLII) – This is a case on the applicability of section 13 of the Charter to the crime of obstructing justice. It is resolved by citing R. v. Staranchuk (1983), 1983 CanLII 2402 (SK CA), which was affirmed by the SCC 1985 CanLII 73 (SCC). In Staranchuk, the SKCA held that s.13 does not apply to testimony where that testimony is itself the Actus Reus of the offence, because it does not conform to the purpose of protecting witnesses from being indirectly compelled to incriminate themselves. There were a number of other grounds of appeal, but none raised pertinent constitutional issues, and all were dismissed. An application for leave to appeal to the Supreme Court of Canada was dismissed on October 29, 2015.

R. v. Michaud, 2015 ONCA 585: In this case Michaud was ticketed for failing to set the speed limiter on his truck to a low enough speed to comply with s 68.1(1) of the Highway Traffic Act, RSO 1990, c H8. He argued that the speed limiters were actually dangerous and violated his section 7 right to life in a manner that did not accord with principles of fundamental justice. The Judge of first instance in this case held that the law imposing the use of speed limiters on trucks violated section 7, and invalidated the legislation for the instant case. The appeal court heard new evidence, and held that section 7 was not infringed by the legislation at all. The issues at the Court of Appeal were whether i) section 7 or section 1 is the place to consider conflicting statistical evidence about the impact of speed limiters on safety, ii) whether Michaud’s section 7 right was infringed, and iii) whether the infringement was justified under section 1. The Court of Appeal held that section 7 triggers on any imposition of a risk, even when the imposition of that risk alleviates other risks. Therefore, the appropriate place to consider the statistical evidence was section 1. Accordingly, they held that Michaud’s section seven rights were infringed. However, they found that the infringement was justified under section 1 because the new evidence presented at the first appeal demonstrated increased safety resulting from speed limiters. Leave to appeal to the Supreme Court was denied without reasons.

R. v. Aravena, 2015 ONCA 250 (CanLII): In this case, the Trial Judge ruled that the common-law defense of duress was unavailable against a charge of murder. The accused appealed against this ruling. The Court of Appeal suggests that the defense of duress is available in any context where an action could be morally involuntary. They conclude that there are contexts in which murder or attempted murder can be morally involuntary in the sense that a person of ordinary fortitude could not have been reasonably expected to undertake any course of action besides attempting to commit murder. They suggest as an example a hypothetical in which a parent is threatened with the death of their child unless they kill another person. As a result, they conclude that the common-law defense of duress is available against murder charges. An application for leave to appeal to the Supreme Court of Canada was dismissed on April 7, 2016.

Figueiras v. Toronto (Police Services Board), 2015 ONCA 208 (CanLII). This is a case in which a police officer stopped a group of protesters during the G20 summit in Toronto. The officer insisted that in order for them to proceed further towards the G20 events, they had to submit to a search of their bags for weapons, and told them that otherwise they had to turn around. At one point, he grabbed Figueiras’ shirt, and pulled him with it. Figueiras asserts that the officers violated his s.2(b) Charter right to free expression. The Court undertakes a Waterfield analysis to determine the scope of police powers at common law in the context of s.2(b) of the Charter. The Court finds that the common law police power potentially at play is the power to target demonstrators when no crime is being committed in the interest of preventing crime, and require them to submit to a search in order to proceed. They conclude that the exercise of power was neither necessary to the police’s goal, nor rationally connected to their goal, since demonstrators did not carry weapons to the scene of violence, but rather picked up improvised weapons on the spot. As a result, given the significant liberty interest of Mr. Figueiras in being able to move about freely in his community, the Court finds that the exercise of power was unjustified. They conclude that s.1 cannot be used to justify the officers’ actions, as the limit on rights was unilaterally determined by the officers, and not proscribed by law.

Frank v. Canada (Attorney General), 2015 ONCA 536: This is an election law case about whether provisions in the Canada Elections act that limit non-resident voting rights to Canadian citizens who have been non-resident for less than five years violate section 3 of the Charter. The breach of section 3 was conceded by the government, but they argued that it was justified under section 1. The core of their argument was that limiting voting rights for those living out of the country preserves “the connection between citizens’ obligation to obey the law and their right to elect the lawmakers.” The majority of the Court of Appeal accepted this as a pressing and substantial objective, and held that a limitation on voting to those who had been outside the country for less than five years was rationally connected to the objective. In practice, people residing outside of Canada often pay little or no tax, and are not subject to Canadian laws in most cases. For this reason, restricting voting to those with recent residence in Canada accurately catches the people who will be impacted by the outcome of voting. Moreover, it was found to be within the range of reasonable options available to parliament, because it allowed for a continued connection through an entire election cycle, and for certain common reasons to leave including completion of a university degree. Any particular number chosen would be arbitrary, but there is no better way to achieve the government’s goal than by choosing a number. Finally, the majority concludes that the harm caused by the provision is limited, since long-term foreign residents recover their voting rights as soon as they return to live in Canada.The dissent argues that since the idea of a social contract was first raised on appeal, there was insufficient evidence to defend the law on that basis. Additionally, he points out that the objective of legislation must be the objective at time of enactment, and that there was no evidence before the court showing that this was the objective of parliament in 1993 when the law was first enacted. Lastly, he finds that even accepting the objective of social contract the restrictions on voting rights are not justified. His argument is that residence ceased to be a valid basis for voting rights in 1983 when the Charter was enacted, and it stipulated that every citizen had the right to vote. He argues that the majority judgment conflicts with Sauvé v Canada, the leading case from the Supreme Court on section 3 voting rights because it provides more stringent protection to voting rights than the majority believes.
Leave to appeal to the Supreme Court was granted in April 2016.

Bonitto v. Halifax Regional School Board, 2015 NSCA 80: In this case Mr. Bonitto was prohibited from distributing tracts exhorting people to convert to evangelical Christianity at a public elementary school during school hours. He claims this decision violated his section 2(a) Charter right to freedom of religion, because the right to disseminate your religion is a component of freedom of religion. The Court holds that the decision to ban Mr. Bonitto from handing out religious tracts during school hours at a public school was reasonable, and that although Mr. Bonitto has a right to distribute his tracts under section 2(a) of the Charter, the school has a duty to be neutral in religious matters under section 2(a) of the Charter as well. Allowing Mr. Bonitto to distribute his religious documents would violate that responsibility. Therefore, the court rejects Mr. Bonitto’s appeal. Bonitto’s appeal to the Supreme Court of Canada was dismissed without reasons.

Nova Scotia Barristers’ Society v. Trinity Western University, 2015 NSCA 113 A recent decision by the NSCA added to the saga of the Trinity Western University’s law school accreditation issue. In this particular instance, the NSCA denied an extension for the Canadian Constitution Foundation to file a request for intervenor status. The judge found that it had acted too slowly to properly file for intervenor status despite knowing the rules. This is merely a recent decision that builds on how the Christian-focused private university holds a controversial stance which recognizes marriage as valid only if it is between a man and a woman. After being denied accreditation by the Nova Scotia Barrister’s Society (NSBS) due to how the stance does not recognize non-heterosexual marriage, the Nova Scotia Supreme Court overturned that decision. The NSBS is seeking to appeal the decision and this particular decision sets the scene for the looming court cases on this issue.

United States v. Qumsyeh, 2015 ONCA 551: This case is about the jurisdiction of committal judges to consider Charter claims. A committal judge is responsible for determining an accused should be extradited to a foreign country for trial. In this case, Mr. Qumsyeh was charged with the murder of his wife in the United States, a crime for which he had already served a 6 year sentence in Jordan. He argued that the charges in the US were double jeopardy, and that his section 7 Charter rights meant that he could not be tried twice for the same crime. The Court finds that the committal judge’s jurisdiction to consider Charter rights is limited to Charter issues that “pertain directly to the circumscribed issues relevant at the committal stage of the extradition process,” and that considerations related to double jeopardy were to be considered at the ministerial decision stage, not before the committal judge. An application for leave to appeal to the Supreme Court of Canada was dismissed on December 3, 2016.

PEI Court of Appeal Quebec Court of Appeal

Quebec Court of Appeal


Quebec (Procureure Général) c. D’Amico, 2015 QCCA 2138 After the Supreme Court Carter decision effectively struck down Canada’s ban on euthanasia, it remains unclear how, if at all, provinces can provide assisted suicide services to patients who request it. Currently, the federal law banning euthanasia is still valid law since the Supreme Court gave Parliament one year to revisit the language (which it has yet to do); however, in effect, it is unlikely to be enforced until Parliament amends the law. Recently, the Quebec Court of Appeals helped clarify the issue by ruling that Quebec’s post-Carter law allowing for assisted suicide is valid provincial law. The appellate court reasoned that since the Supreme Court Carter decision is itself legally valid even if it is not yet implemented, Quebec’s legislature can enact new law to fill the void during the one-year Parliamentary review period on the current euthanasia law.

Singh c. Montreal (Ville de) 2015 QCCS 3853: A well-known Montreal social activist was detained for breaching his release conditions owing to his attendance at a public protest. Specifically, his release condition for a previous conviction indicated that he could not attend any non-peaceful public gathering. Singh was arrested during what was later proven to be a peaceful International Woman’s Day rally. During the time of his arrest, Singh was held in a cell and denied bail for five days whereupon he was charged with breaching his release conditions. Singh argued that this was a wrongful detention to begin with and that it violated his s.s.2, 7, and 9 Charter rights.

The Quebec Superior Court found that Singh’s arrest and detention were indeed premised upon false evidence of the protest being non-peaceful and thus breached Singh’s s.7 Charter rights. However, the court did not agree with Singh’s argument that it was a violation of his s.2 rights since the basis of his arrest was not for his expressions of opinion in the protest, but for his participation in an alleged non-peaceful atmosphere of the protest. The Court made no findings with respect to the claim under s.9. Ultimately, Mercier and Lamirande were ordered to pay $15,000 in punitive damages for the violation of Singh’s rights under s.7. An appeal to the Quebec Court of Appeal was granted.

Saskatchewan Court of Appeal


Duffield v. Prince Albert (City), 2015 SKCA 46 (CanLII): This is a case about municipal powers, and paramountcy. The court concludes that the municipal power to regulate taxis includes the ability to prevent them from buying alcohol for their taxi customers by preventing taxis from going through drive-through liquor outlets. They find that this does not qualify as interference with the paramount authority of the province over alcohol regulation. An application for leave to appeal to the Supreme Court of Canada was dismissed on November 19, 2015.

R. v. Sabados, 2015 SKCA 74: In this case, Mr. Sabados was charged with breach of recognizance because he refused to provide a breath sample to the police without first having access to counsel. He seeks to have the evidence of his refusal excluded because it is a direct consequence of his being denied a right to counsel. The questions in this case are i) whether an accused waives their right to counsel under s. 10(b) of the Charter when they enter into a recognizance which permits the police to take breath samples upon request, and ii) whether the evidence should be excluded because of the breach of Mr. Sabados’ right to counsel. The court concludes that on the facts, the terms of the recognizance did not require the accused to provide breath samples without exercising his section 10(b) rights, and that it will not determine the issue of whether it is possible to waive the right to counsel in a recognizance until an explicit waiver is before the court. The court then enters an acquittal on the charge, reasoning that the charge would not have occurred if Mr. Sabados had been granted his right to counsel.

Northwest Territories Court of Appeal


Northwest Territories (Attorney General) v. Association des parents ayants droit de Yellowknife, 2015 NWTCA 2 (CanLII): This is a minority language rights case. The issue is whether École Allain St-Cyr, the minority language school in Yellowknife, meets the minimum constitutional standards under s.23 of the Charter. The Court finds that it does not, and orders the construction of a gymnasium, and an instruction to secure more stable access to specialized facilities such as science labs. However, it overturns the majority of the Trial Judge’s order, concluding that the order was based on numerous errors of law, and vastly overstated the entitlements of s.23 rights holders in Yellowknife. In determining this, the Court holds that minority language schools are required to “marshall their resources,” devoting the space and funding provided to them by the government to meeting constitutional minimum requirements first, and any other use second. The Court also states that minority language schools which are small enough can be required to share facilities with majority language schools, and that it was an error of fact for the trial judge to dismiss sharing facilities as a solution without further examination. An application for leave to appeal to the Supreme Court of Canada was dismissed on October 29, 2015.

Northwest Territories (Attorney General) v. Commission Scolaire Francophone, Territoires du Nord-Ouest, 2015 NWTCA 1 (CanLII): In this case, the Commission Scholaire sought to challenge a ministerial declaration limiting enrollment in minority language schools to students who were specifically eligible under s.23 of the Charter. They also sought an order to expand the school, which they alleged was insufficient in size. The Court cites Commission Scolaire Francophone du Yukon no 23 v Yukon (Procureure Générale), 2014 YKCA 4 (CanLII), concluding that the declaration was constitutional, and that the Minister was entitled to restrict the usage of facilities provided under s.23 to s.23 rights holders. The Court finds that in this case the government was also not in breach of its s.23 obligations with respect to the number of students attending the school. An application for leave to appeal to the Supreme Court of Canada was dismissed on October 29, 2015.

Nunavut Court of Appeal

Yukon Court of Appeal